Part of the Hanoi Congress – XVII Congress of IADL, June 2009
- Experience with Anti-Terrorism laws around the World
- Right of Resistance and International Law
- Cuban 5
- Problem of Death Penalty
SUMMARY REPORT COMMISSION NO 2 ANTI-TERRORISM LAWS
10 June 2009, IADL 17th Congress, Hanoi, Vietnam
The commission was presided by Ass. Prof. Dr. Tran Dinh Nha, Vice-chairman of the national Defense and Security Committee of the National Assembly of the Socialist republic of Vietnam and Jan Fermon from the Progress Lawyers network (Belgium)
M. Edre Olalia fropm the National Union of Peoples Lawyers (Phillipines) was raporteur.
The participants in the Commission agreed on a number of general points, themes and ideas while at the same time considered various points of views or approaches on topics and principles covered by the Commission theme on Anti-Terrorism Laws.
The Commission was unanimous that there is no shadow of doubt that blind or indiscriminate violence against civilians must and should be condemned. We recognized that States have a duty or responsibility to protect civilians against these forms of violence, to safeguard national sovereignty and maintain social order and in that respect, we also heard a report on a proposed anti-terrorism legislation in Vietnam. The general idea is that the struggle against terrorism requires respect for international humanitarian law and that there are different approaches to the problem.
It was pointed out, however, that while countries apparently are one in the common effort to fight terrorism, it remains as a matter of fact that such cooperation between and among countries must take into consideration varying points of view. This explains the unevenness of the level of involvement in such campaign which does not require identical approaches.
Several participants opined that there is general agreement that it is extremely difficult to define terrorism in a legal way. There are different instruments with varying definitions and that there is no generally accepted definition of what terrorism is. Indeed, oftentimes, definitions of terrorism are so broad and vague.
Thus, insofar as the question of the necessity of finding a unified definition of terrorism is concerned, two points of view were articulated. The first is that terrorism is essentially a political and sociological concept with many aspects and approaches that it is extremely difficult and may be not useful to come up with a common definition. States can commit terrorist acts but it is difficult to bring them under a precise definition or through an anti-terrorism legislation. In general, the conclusion of the Commission is that terrorism should not be defined as a purely legal concept and that the repression and violence against civilians are violations of international humanitarian law and the jurisprudence of international courts. The second view is that there must be a definition or multiple definitions of the concept of terrorism.
The Commission reflected on these two approaches and acknowledged that there exists different opinions on the matter, even as democratic lawyers can perhaps attempt to develop a set of criteria or standards that can be used to define an act as terrorist so it could be used as good reference to make the appropriate laws.
At any rate, the Commission received extensive references and unified on the point that the concept of terrorism is sometimes used by States to undermine the stability and sovereignty of other States. We strongly condemn this also as violations of international law particularly the principle of sovereignty and the right of self determination of the people.
As established in international humanitarian law, the right of peoples to fight for national and social liberation is recognized, including the right of self-defense of groups and communities. However, there is a clear tendency or even deliberate design to criminalize such liberation and social movements under the false label of terrorism. The participants in the Commission reaffirmed the principles of international law under which peoples have the legitimate right to resistance and to fight for liberation and employ the use of necessary and permissible armed force against oppression, repression, exploitation and against any form of terrorism. The use of armed force is legitimate and justified and may be the only way but the same must conform to certain basic norms of international humanitarian law. Any legislation or issuance to characterize these struggles as terrorism or the selective use of
the concept of terrorism in this context must be exposed and opposed.
On the national level, the Commission had a similar situation of two points of view. Some of the participants believe that terrorism is a specific phenomenon which requires a specific legislation under national criminal law. Such kinds of legislations are expected to respect international humanitarian law and would be used consistent with the rule of law in the context of a national framework and that all political dissent and legitimate political activities must not be included . Other participants posit that traditional criminal law in fact already has all the necessary instruments and provisions to cover and prohibit acts that are oftentimes dubiously repackaged as terrorism. In this regard, these kinds of anti-terrorism laws must be ended and that traditional criminal prosecutions must be reverted to.
It was pointed out that very often in anti-terrorism laws, certain basic democratic rights like the right to privacy and to due process are openly compromised or violated. In this regard, there is a recommendation arising out of the discussions in the Commission that a study group or committee be formed to tabulate and compare notes on how to respond for instance on surveillance or spying against the victims of such violations who are suspected of terrorism. Moreover, basic procedural safeguards like the rights of defense and of the principle of impartiality are undermined in the implementation of anti-terrorism laws, resulting in violations of these principles like those of the Guantanamo prisoners and the special military commissions in the US. The use of military courts and of subjecting a suspect to indefinite detention must be opposed.
Furthermore, there is also a complete absence or diminution of the rights of defense in the inclusion of individuals and organizations in the US and Europe so-called terrorist lists. Such kind of public labeling has led to paranoia and discrimination of entire civilian communities or groups and the proscription of certain political dissent or expression and access to information that are normally protected or guaranteed. The question of legality is hence a principal issue in the difficulty of defining precisely the concept of terrorism.
The Commission also heard presentations on the application of double standards in the so-called fight against terrorism like the case of the Cuban 5 patriots who actually were preventing terrorism with peaceful means but were convicted to life sentences, demonstrating a brazen political bias especially when measured against the case of one Posada Carrilles who bombed a plane that killed hundreds but has not been prosecuted at all. This merely confirms that the so-called fight against terrorism is used as a pretext and is motivated by partial political considerations that actually are directed to repress liberation fighters and dissenters who struggle to assert self determination while endowing impunity against the real terrorists on the other hand..
It was observed though that in order to eventually and ultimately fight and prevent terrorism, the root causes that push some people to commit such acts should and must be examined and addressed. Such deep causes can sometimes lead to desperate acts which must be condemned but which could possibly have been prevented if such root causes are addressed correctly.
In sum, there is a general consensus in the Commission that stopping terrorism should strictly respect international and national law and should not be used to repress dissent and demonize liberation movements.
As a general recommendation in addition to those arising from the foregoing consensus points, the Commission recommends that all the available materials, papers and studies on the subject matter must be studied thoroughly and that a more permanent committee to discuss the concept of terrorism be done comprehensively and in a more permanent way.
Download papers presented at Commission 2 (Hanoi 2009):
- Report of Commission 2 on Anti-Terrorism Laws.doc (41.5 KB)
- Arthur Heitzer The Status of Restrictions on the Right to Travel from the U.S. to Cuba.doc (130.5 KB)
- Bill Bowring Terrorist lists and procedural human rights the collision between UN law EU law and Strasbourg law.doc (137 KB)
- Dorys QuintanaTerrorismo y Derecho International Humanitario .doc (68 KB)
- Dr Phan Xuan Tuy SOME DISCUSSION ON THE RIGHT TO RESIST IN INTERNATIONAL LAW.doc (45.5 KB)
- Edre Olalia The Status in International law of national liberation movements and their use of armed force.doc (96.5 KB)
- Ho Trong Ngu SOME ISSUES RELATED TO DEATH PENALTY JUDICIARY IN VIETNAM .doc (57 KB)
- Jan Fermon and Raf Jespers Litigating Terrorist cases in the era of the war on terror.doc (113 KB)
- Pham Thi Chung Thuy INTERNATIONAL LAW ON TERRORISM AND LEGAL PERFECTION IN VIETNAM.doc (36 KB)
- Phan Quang Vinh VIETNAMESE LAW ON ANTI-TERRORISM.doc (50 KB)
- Dr Phan Xuan Tuy SOME DISCUSSION ON THE RIGHT TO RESIST IN INTERNATIONAL LAW.pdf (349.48 KB)
- Ho Trong Ngu SOME ISSUES RELATED TO DEATH PENALTY JUDICIARY IN VIETNAM.pdf (438.45 KB)
- Marjorie Cohn The Cuban Fives campaign against terrorism.pdf (275.19 KB)
- Mohamed Tay Terrorisme et droit à l’autodétermination.pdf (252.95 KB)
- Pham Thi Chung Thuy INTERNATIONAL LAW ON TERRORISM AND LEGAL PERFECTION IN VIETNAM.pdf (258.55 KB)
- Phan Quang Vinh VIETNAMESE LAW ON ANTI-TERRORISM.pdf (343.54 KB)
- Progresif People Lawyer Union – Indonesia TERRORISM IN IMPERIALISM GRIP.pdf (721.56 KB)